(dissenting).
I respectfully dissent.
As I understand the principal opinion, it holds that when a defendant who has sought no affirmative relief asserts in good faith and at the first opportunity his privilege against self-incrimination, a court will exceed its jurisdiction if it enters an order striking defendant’s answer for refusal of defendant to testify. However, it recognizes that the court may strike a party’s pleadings if that party seeks affirmative relief or if by some action can be said to have waived his rights. I so conclude because the court cites and discusses the case of Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (Mo. banc 1955), wherein the court upheld the striking of plaintiff’s pleadings in a divorce action after she refused to answer interrogatories on the ground they might incriminate her, and the case of Geldback Transport, Inc. v. Delay, 443 S.W.2d 120 (Mo.1969), wherein this court upheld dismissal of a cross-claim where cross-claimant had refused to answer interrogatories on self-incrimination grounds. With reference to those cases, the principal opinion states: “The affirmative relief test and waiver theory of Franklin and Geldback are sound. It is not unfair to preclude one who invokes the assistance of the courts from recovery when he refuses to produce evidence peculiarly within his knowledge pertinent to his right to recover.”
Assuming the correctness of the principal opinion’s conclusions, relator, in my judgment, is not entitled to a writ of prohibition in this case. The principal opinion erroneously concludes that relator did not seek affirmative relief in the trial court. The fact is that relator’s answer was not simply a general denial of plaintiff’s allegations; instead he alleged that plaintiff’s deceased husband was guilty of negligence which contributed to cause the collision and that for such reason plaintiff may not recover. This allegation asserts the affirmative defense of contributory negligence by which he seeks affirmative relief from the court and as to which he has the burden of proof. This pleading was not simply an attempt to defeat plaintiff by showing that relator was not negligent; rather it a,sks the court to enforce sanctions against plaintiff by denying recovery on the basis that negligence on the part of plaintiff’s decedent contributing to cause the accident was affirmatively demonstrated by relator. In my judgment this amounts to seeking affirmative relief just as much as a pleading in the nature of a counter-claim. To illustrate, suppose a defendant files a pleading in which he asks the court to offset part or all of any recovery obtained by plaintiff therein. If the defendant had asked for such relief by way of counter-claim for that sum, he unquestionably would be seeking affirmative relief. I submit that he also asks affirmative relief when he seeks allowance of the sum as an offset against plaintiff’s recovery rather than having a separate judgment therefore based on a counter-claim. If that conclusion be correct, then a fortiori the defendent who seeks to defeat (in effect to offset) plaintiff’s recovery on the basis of contributory negligence also is seeking affirmative relief from the court. Accordingly, even under the rule announced in the principal opinion, a writ of prohibition should not be made permanent under the facts of this case.
There are other facts not referred to in the principal opinion which also provide a basis for holding that relator sought and obtained affirmative relief from the court or that there was a waiver on the part of relator against prohibiting respondent herein by way of writ of prohibition. On July 18, 1972, pursuant to prior arrangements *563between the parties in the St. Francois suit, both the plaintiff, Laura Mae Tripp, and the defendant (relator herein) appeared before a notary public in Jefferson County for the purpose of having their depositions taken. The defendant first took the deposition of Mrs. Tripp in which she answered all questions propounded to her by counsel for relator. Thereupon, pursuant to the arrangements previously made, defendant was sworn and plaintiff’s counsel started to take defendant’s deposition. He gave his name and address after which he refused to answer any other questions on the ground that to do so might incriminate him.
When relator, utilizing the rules of the court which permit discovery including depositions, sought and obtained the deposition of plaintiff, he thereby obtained affirmative relief from our court system. This amounted to more than simply availing himself of the right to deny the plaintiff’s right of recovery and then to appear for the purpose of attempting to defeat recovery at the time of trial.
Furthermore, it is apparent from what occurred that relator planned to refuse to go through with his prior arrangements to reciprocate by giving his deposition after plaintiff’s deposition was taken. He did this without disclosing to plaintiff or her attorney his intention to assert his privilege against self-incrimination. This casts some doubt upon the correctness of the statement in the principal opinion that the privilege was not asserted by relator in a posture indicating bad faith. By this, I do not mean that he did not have a proper basis for asserting his right to decline to testify on the basis of self-incrimination. I do suggest that his conduct in arranging for the mutual taking óf depositions and then proceeding to take the plaintiff’s deposition without disclosing his intention not to reciprocate immediately thereafter does indicate that in that respect the defendant was not acting in good faith.
The principal opinion recognizes that in some situations the ruling made will result in hardship to other litigants. Consequently, in the process of protecting relator’s constitutional rights against self-incrimination, we should not' accord to'him any more than is essential to protect those rights. We should let him defend — utilize a shield — but we should not give him a sword in the process. He should not be allowed to seek any form of affirmative relief. Furthermore, we should recognize that utilization of discovery is a two-way street, in which a party necessarily agrees to furnish answers in return for the discovery he can or does obtain. We should not permit a party to convert that two-way street into a one-way affair in which he takes but doesn’t give. This is particularly true when the party travels what apparently is a two-way street and then blocks travel by his opponent by suddenly erecting without any advance warning the one-way marker.
It seems to me that this court, either on the basis that by seeking the deposition of the plaintiff the relator sought affirmative relief from the court (bringing him within the doctrine of Franklin and Geld-back) or that he by the previously described conduct at least waived his right to claim that his pleading should not be stricken for his failure to testify on his deposition, very properly could hold that relator is not entitled to a writ of prohibition.
If the court adopts the rule announced in the principal opinion, then I suggest that we should be consistent and make it all inclusive. A defendant not only should not be permitted to seek affirmative relief by counter-claim or cross-claim; he also should not be permitted to assert affirmative defenses and he should not be permitted to utilize discovery procedures. I would also hold as suggested in the principal opinion, that invocation of the privilege at the discovery stage should preclude a defendant from controverting through his own testimony or records the evidence of plaintiff at trial.